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Revision Application No. 323 of 1984, decided on 7th February, 1987.

--O.II, R.2(2) & O.VII, R.11--Splitting of claim arising out of same cause of action is not permissible, as a party cannot be vexed twice for same cause and also to avoid multiplicity of suits--Claim once omitted or relinquished, held, could not be made subject-matter of a subsequent suit on same cause of action--In case a relief is omitted, plaintiff would be precluded from suing afterwards for the relief so omitted but if omission was with leave of Court then the bar would not apply--Plaintiff filed suit for declaration and injunction and omitted to sue for cancellation of lease intentionally--Order of Trial Court that suit for cancellation was barred, was unexceptionable.

P L D 1970 S C 63 rel.

Mumtaz Ellahi Shaikh for Applicant.

Respondents Nos.1 and 3 (absent).

S.M. Muslim Naqvi for Respondent No.2.

Date of hearing: 15th February, 1987.

This Revision Petition is directed against the order dated 26-7-1984, passed by VII Additional District Judge, Karachi, in Civil Appeal No. 476/80 whereby he accepted the appeal and remanded back to the trial Court for further proceedings of the suit according to law.

The facts leading to the filing of the above revision are that the father of the respondent No.1 purchased super-structure of two huts with possession and adjoining open portion of the plot approximately measuring 400 Sq. Yards situated in Darayabad from one Saleh Muhammad for Rs. 260 only as per receipt dated 7-3-1956.

The respondent No.1 filed suit bearing No.667 of 1979 against the petitioner and others for cancellation of lease, declaration and injunction. It is the case of the respondent No.1 that at the time of purchase, the locality known as Daryabad was neither surveyed nor assessed by any Government department or local authorities. It is the case of the respondent No.1 that subsequent to the purchase of the super-structure and the plot the area was surveyed and assessed by respondent No.2 and specific numbers were given to the plot in occupation of the father of tile respondent No.1. It is the case of the respondent No.1 that his father got the name of the respondent No.1 entered in the property register maintained by the respondent No.2 and also in the property register maintained by the respondent No.3. It is the further case of the respondent No.1 that as a result of sickness of the father of the respondent No.1 the mother of the respondent No.1 rented out the premises to one Misal Khan at monthly rent of Rs. 35 and the respondent No.1 and his mother went to reside at Bihar Colony, Karachi. During her absence from the premises the petitioner who was the tenant and occupant of the house belonging to one Noor Khan by some fraudulent means got the plot mutated in his name in the property register of the Excise and Taxation and obtained tax bills in his name without the knowledge of or notice to the respondent No.1 or to the occupant of the house and the plot. It is the further case of the respondent No.1 that the respondent No.3 did not serve any notice as required under the provisions of West Pakistan Urban Immovable Property Tax Rules. Thereafter on the basis of illegal entry made in the record of the respondent No.3 the respondent No.1 approached respondent No.2 and by illegal means without a notice got lease deed executed in his favour in respect of 77.5 Sq. Yds. The respondent No.1 approached the respondent No.2 and was informed that portion of plot was leased out to the petitioner and only 40 Sq. Yds. was available for him. The respondent No.1 filed Civil Suit No. 370 of 1976 against the petitioner for declaration and injunction. The petitioner also filed suit No. 393 of .1976 against the respondent No.1 for possession. Both the suits were consolidated. Suit No. 370 of 1976 was dismissed and the suit filed by the petitioner was decreed. The learned trial Court observed as follows:-

"Moreover the plaintiff has sought only declaration of lease deed being null and void and. obtained by fraud and misrepresentation but he has not prayed for cancellation of the lease deed. The relief of declaration of a document being forged cannot be granted until and unless the cancellation is prayed for."

The respondent No.1 filed the suit No.667 of 1979 against the petitioner and two others for cancellation of Lease, Declaration and Injunction. The petitioner filed application under Order VII Rule 11 read with Order II, Rule. 2. The respondent No.1 filed his counter affidavit.

The learned trial Court after hearing the arguments of the learned counsel for the parties allowed the application vide order dated 6-10-1980. The learned trial Court held that the suit is barred under section 11 and Order 2 Rule 2, C.P.C.

The respondent No.1 being aggrieved against the order dated 6-10-1980 preferred Civil Appeal No. 476 of 1980 before the District Judge, Karachi. Ultimately the case was transferred to the VII Additional District Judge, Karachi.

The learned Additional District Judge after taking into consideration the arguments advanced' by the learned counsel for the parties allowed the appeal vide order dated 26th July, 1984 as stated earlier.

The petitioner being aggrieved against the order dated 26-7-1984 of the VII Additional District Judge has preferred this revision petition on the grounds mentioned in the memo of revision. The respondent No.1 though served through substituted service as well as registered A/D has chosen to remain absent.

I have heard the learned counsel for the petitioner as well as respondent No. 2 and perused the record.

It is an admitted position that the respondent No.1 filed suit No. 370/76 against the petitioner for declaration and injunction only. The respondent No.1 omitted to sue for cancellation of the lease deed executed between the petitioner and respondent No.2. Order II, Rule 2 provides that if the plaintiff omits to sue for all the claims and reliefs to which he is entitled on a cause of action then the plaintiff would not be entitled afterwards to sue in respect of the portion of the claim so omitted or relinquished. But where the plaintiff is entitled to more than one relief in respect of the cause of action and fails to seek all the reliefs then he can ask for it only with leave of the Court. A claim once omitted or relinquished can not be made subject matter of a subsequent suit on the same cause of action. In case a relief is omitted the plaintiff would be precluded from afterwards suing for any relief so omitted. However, Order 11, Rule 2(3) provides an exception and if the omission is with the leave of the Court then this bar will not apply. The bar provided by Order II, Rule 2 shall apply where the previous and subsequent suits are based on the same cause of action. Reference can be made to the case of P L D 1970 S C 63. It is thus well settled position of law that the law does not permit splitting of claim arising out of the same cause of action as a party can not be vexed twice for the same cause. It will avoid multiplicity of suits.

In the instant case plaintiff /respondent No.1 omitted to sue in respect of the claim of cancellation of the lease and intentionally. relinquished the same. The respondent No.1 omitted to sue for the claim of cancellation of lease and he had intentionally relinquished it. It seems that the trial Court rightly held that the claim is barred under Order 11, Rule 2 of the C. P. C.

For the aforesaid reasons the revision petition is allowed and the impugned order of the learned Additional District Judge is set aside and that of the learned Civil Judge restored without any order as to costs.

The above are the reasons for my short order dated 15-2-1987 allowing the Revision on conclusion of arguments.

M.Y.H./M-113/K Petition allowed.

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